After Problem Execution, Governor Bush Suspends the Death Penalty in Florida

By ADAM LIPTAK and TERRY AGUAYO

Published: December 16, 2006

Gov. Jeb Bush yesterday suspended all executions in Florida, citing a troubled execution on Wednesday and appointing a commission to consider the humanity and constitutionality of lethal injections.

Hours later, a federal judge ruled that the lethal injection system in California violated the constitutional prohibition of cruel and unusual punishment.

''Today has been the most significant day in the history of the death penalty in America in many years,'' said Jamie Fellner, director of United States programs for Human Rights Watch. ''These developments show that the current lethal-injection protocols pose an unacceptable risk of cruelty.

''The way states have been killing people for the last 30 years has yielded botched execution after botched execution.''

California has the largest death row in the nation, at about 650. The state has executed 13 people since the United States Supreme Court reinstated the death penalty in 1976.

Florida, by contrast, has executed 64 people in the modern era of the death penalty, trailing four states.

The California decision, which followed a four-day evidentiary hearing and a session at the San Quentin prison, was eagerly awaited and probably represents the fullest and most careful consideration yet of whether the way inmates are executed violates the Eight Amendment ban on cruel and unusual punishment.

Judge Jeremy Fogel of Federal District Court in San Jose delivered a mixed verdict, writing, ''Defendants' implementation of lethal injection is broken, but it can be fixed.''

The new commission in Florida, which will include doctors, lawyers, scientists and law enforcement officials, will consider many of the same issues, including whether the state protocol satisfies ''humanity, constitutional imperative and common sense,'' Mr. Bush said in his order.

Deborah W. Denno, an authority on execution at the Fordham University Law School, said Judge Fogel's decision was ''both bold and safe.''

''Judge Fogel's decision is the most definitive response so far in concluding that a state's lethal injection protocol, in its current form, is unconstitutional under the Eighth Amendment,'' Professor Denno said.

Even as Judge Fogel issued a withering critique of the way California executes condemned inmates, he invited the state to submit a revised protocol to remedy the shortcomings. Similarly, Mr. Bush suggested that executions in Florida might resume after his panel gives its final report in March.

Judge Fogel found that prison execution teams had been poorly screened and had included people disciplined for smuggling drugs and with post-traumatic stress disorder. Moreover, the team members are poorly trained and supervised, he said.

Record keeping is spotty, the judge found, and the chemicals used are sometimes improperly prepared. The death chamber, he added, is badly lighted and overcrowded.

''Defendants' actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation,'' Judge Fogel wrote. ''This is intolerable under the Constitution.''

Judge Fogel also noted concerns about the chemicals that California, Florida and 35 other states use. The protocols vary slightly, but almost all call for a series of three chemicals. The first is a barbiturate to render the inmate unconscious. The second is a paralyzing agent that makes the inmate unable to speak, move or breathe. The third is potassium chloride, which stops the heart.

Both sides in California agreed that it would be unconstitutional to inject a conscious person with either or both of the second two chemicals. The paralyzing agent would leave the inmate conscious while he suffocated, and potassium chloride is extremely painful.

The two sides also agreed that if the first drug was effective, using the others did not violate the constitution.

Judge Fogel suggested a way out. Were inmates executed in the same way that animals were euthanized, solely by an anesthetic, that would, he wrote, ''eliminate any constitutional concerns, subject only to the implementation of adequate, verifiable procedures to ensure that the inmate actually receives a fatal dose of the anesthetic.''

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which supports the death penalty, said the decision was in that sense a welcome one.

''It's unfortunate that we have another delay,'' Mr. Scheidegger said. ''But it does appear that there is at least one path to a constitutional procedure.''

Florida started its moratorium two days after Angel N. Diaz's execution appeared to go awry. Dr. William Hamilton, medical examiner in Alachua County, Fla., said yesterday that the needle with the lethal chemicals that should have gone directly into Mr. Diaz's veins punctured the veins before entering soft tissue. It took a second dose and 34 minutes for him to die.